A reason for gratitude: We can care for loved ones when they need us most 1

A reason for gratitude: We can care for loved ones when they need us most


By Ramit Mizrahi

Thanksgiving has always been my favorite holiday. While it’s true that all year I look forward to eating turkey, cranberry sauce, and pumpkin pie, I love most what the holiday stands for. It is a day of gratitude, shared by Americans of all faiths and persuasions, that we set aside to spend with our families. As we reunite with our loved ones, we focus on what really matters and appreciate all that we have. The holiday has special significance for me as a plaintiff-side employment lawyer. One of my primary focuses is on family leave, and I spend a lot of time thinking and writing about how we can encourage and protect caregiving by workers, male and female. After all, what’s more important than family? So this year I am extra thankful: our paid family leave program is being expanded to allow workers to care for more family members.

Workers today face significant barriers when trying to take family leave, particularly those who are already struggling to make ends meet. Around three quarters of Americans live from paycheck-to-paycheck, with little in the way of savings, and 68% of Americans would find it difficult if their paychecks were delayed by even a week. It is no surprise, then, that a 2012 Department of Labor survey found that of those who reported that they needed family and medical leave but did not take it, 46% stated that inability to afford leave was the reason they did not take it. Of those who did take leave, nearly half cut their leave short because they could not afford more time off. Paid family leave is therefore critical as a safety net for workers to take the time they need to bond with their babies and to care for their relatives.

Since 2004, California has offered a Paid Family Leave (PFL) program that provides up to six weeks of paid benefits for workers to take time off to bond with a new child or care for seriously ill family members. It is fully funded by employees, and all employees who pay into the State Disability Insurance Fund are covered. However, until recently, its scope was limited to leave to care for a parent, child, spouse, or domestic partner, or to bond with a new child.

Earlier this year, Governor Brown signed SB 770 (Jackson) to expand PFL coverage to employees who take leave to care for seriously ill grandchildren, grandparents, siblings, or parents-in-law. By expanding PFL’s scope, we take into account changing demographics and allow more workers to provide care for family members in need. According to research cited by State Senator Hannah-Beth Jackson, author of SB 770, California has the second-highest percentage of multi-generational households in the country, and the EDD rejected about 10% of PFL claims because the employee sought leave to care for a family member not previously covered.

We as a society only stand to gain from family members being able to provide each other with quality care. Research has shown that the effect on workers and their families has been overwhelmingly positive. For example, with respect to new parents, research found that 91% of those who used PFL said it had a positive effect on their ability to care for their new child, that fathers who used PFL took a leave twice as long as men who didn’t use PFL, and that PFL doubles the duration of breastfeeding for new moms who used it. Employers, too, have reason to celebrate the expansion of PFL as the vast majority of surveyed employers responded that PFL had either a “positive effect” or “no noticeable effect” on business productivity (89%), profitability/performance (91%), turnover (96%), and employee morale (99%).

For next year, let’s aspire to expand paid family leave further, to cover more working Americans inside and outside of California.  Within the next few weeks, Senator Kirsten Gillibrand (NY) and Representative Rosa DeLauro (CT) will introduce the Family and Medical Insurance Leave Act (“FAMILY Act”), which would provide workers with up to 12 weeks of paid family leave at up to 66% of their earned wages. Within California, we can also help more workers take family leave by expanding PFL to cover public employees and by giving job protection to those who take PFL. By strengthening our paid family leave programs, the ability to take time to care for family members and bond with children will be within reach for so many more workers throughout the country.

This Thanksgiving, celebrate your time with family. Be grateful for the love and health you all have, and take comfort that if they need you, they can count on you to be there for them.

Ramit Mizrahi

About Ramit Mizrahi

Ramit Mizrahi, the founder of Mizrahi Law, APC, practices in the area of employment law, representing employees exclusively. Her work focuses on cases involving discrimination, harassment, retaliation, leave law issues, and wrongful termination. She is a graduate of Yale Law School, The London School of Economics, and UC-Berkeley.

Giving thanks: A luxury that Wal-Mart workers can’t afford 3

A Wal-Mart food drive... for Wal-Mart workers!


By Ramit Mizrahi and Sharon Vinick

This photo has been making the rounds on the internet, sparking both criticism and ridicule. It shows bins at a Canton, Ohio Wal-Mart put out by management with a sign asking: “Please donate food items here so Associates in need can enjoy Thanksgiving Dinner.” The photo went viral for a simple reason: it captures perfectly the fact that Wal-Mart associates earn so little that many will struggle to put dinner on their table this Thanksgiving — and management knows it!

Most of Wal-Mart’s hourly employees make less than $25,000 per year. This statistic makes sense since Wal-Mart typically pays entry level employees $8.00 per hour, which is just above minimum wage. Even after six years, an individual employed by Wal-Mart can only expect to be paid $10.60 per hour.

Given the low wages paid by Wal-Mart, it is not too surprising that many of its employees have to turn to state and federal aid programs in order to make ends meet. According to a report by Congressional Democrats released in June 2013 (discussed in this Mother Jones article), many Wal-Mart employees receive government aid, which costs taxpayers between $900,000 and $1.75 million per store, per year. Taxpayers in California, alone, are spending $86 million each year to provide healthcare and other public assistance to the state’s 44,000 Wal-Mart employees, at a cost of about $2,000 per worker.

Even Wal-Mart seems to recognize that its employees can’t live on the wages that the company pays and must rely on public assistance (and charity). Back in 2005, the New York Times reported that Wal-Mart’s executive vice president for benefits sent the board of directors an internal memo stating that “Wal-Mart has a significant percentage of associates and their children on public assistance.” But Wal-Mart has taken an unapologetic stance. With respect to the food drive pictured above, Wal-Mart representatives have said that it is proof of its efforts to take care of its employees!

For many years, Wal-Mart’s treatment of its employees has been the focus of activism, employee action, and litigation. This year, protests will be held on Black Friday at over 1,500 Wal-Mart stores.

Why has so much attention been focused on a single corporation? Perhaps it is because Wal-Mart is larger than Home Deport, Kroger, Target, Sears, Costco and K-Mart, combined? Perhaps it is because of the low-wages that workers earn while Wal-Mart’s CEO makes more in an hour than a full-time worker makes in an entire year? Whatever the reasons, Wal-Mart, as the nation’s largest employer, has become a symbol of the problems plaguing workers who work full time, yet don’t make enough money to make ends meet.

In the coming days, as Americans prepare for — and recover from — their Thanksgiving feasts, we should not only give thanks for what our families have, but make a commitment to helping other families who have far less. Real help requires more than just a few spare canned goods thrown into a bin. It requires that we address the reasons that our nation’s workers are in need. We should applaud Governor Jerry Brown for signing into law AB 10, a bill that will increase the minimum wage in California to increase the minimum wage to $10 per hour in 2016. And, we should lobby Congress to pass the Fair Minimum Wage Act of 2013, which would increase the federal minimum wage for all workers, including those at Wal-Mart, to $10.10 by 2015. Such legislation could help in ensuring that all workers can afford a Thanksgiving feast, without relying upon the kindness of their co-workers.

* * *

Disclosure: Co-author and attorney Ramit Mizrahi worked on the Dukes v. Wal-Mart Stores, Inc. case from late 2004 to early 2006.

Ramit Mizrahi

About Ramit Mizrahi

Ramit Mizrahi, the founder of Mizrahi Law, APC, practices in the area of employment law, representing employees exclusively. Her work focuses on cases involving discrimination, harassment, retaliation, leave law issues, and wrongful termination. She is a graduate of Yale Law School, The London School of Economics, and UC-Berkeley.

Thinking “outside the box” means “banning the box”



By Christian Schreiber

Last month the U.S. Supreme Court again refused a request by Governor Jerry Brown to stay a Ninth Circuit decision ordering the release of 9,600 inmates by the end of the year.

In spite of the decision, no reasonable person believes the streets will be teeming with violent criminals on New Year’s Day.  What is certain, however, is that the ranks of California’s unemployed will swell with those former prisoners, as those released will join thousands of other “ex-cons” unable to find work because of their past criminal convictions.  While news of sluggish job growth and lingering unemployment cycles through the front pages every few weeks, scant attention is paid to the legal obstacles placed in the path of thousands of would-be workers who have been convicted of a crime.

Momentum has been building to address at least one of those obstacles – the dreaded “paper screen” intended to ferret out applicants with criminal records.  Governor Brown’s signature on Assembly Bill 218 placed California among a growing list of jurisdictions that are “Banning the Box.”

Ban-the-Box initiatives were originally pushed by formerly-incarcerated people.  They believed that by eliminating the kind of “check the box”-type question —  “Have you been ever been convicted…” — from employment applications, they might be given a fair opportunity to prove their worthiness for the job.  Now employers, including most recently Target, are seeing the wisdom of the approach.

Help for former prisoners re-entering the workforce is long overdue.  The United States leads the world in incarceration rates, and California ranks at or near the top of every list measuring the number of individuals in federal or state prison, local jails or under supervised release.  According to the Department of Justice, Bureau of Justice Statistics, incarceration rates have fallen slightly the last two years, meaning more former prisoners are re-entering the work force each year.

Ban-the-box legislation is just the first step, but it’s an important one.  In the absence of legal protections, what former prisoners face can barely be distinguished from Jim Crow.  Individuals with past criminal convictions face discrimination that is not only common, it’s effectively encouraged.  No group continues to be discriminated against so openly, with base racial prejudices endorsed at the highest levels.  Supreme Court Justice Antonin Scalia no doubt speaks, albeit in code, to these unconscious racial fears many people have about the release of any inmates—whom he describes as “fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Justice Scalia’s myth of a super-criminal appears to have more in common with his taste in TV or literature than it is does in reality, where nearly a third of released prisoners are over 40.  But he’s hardly alone.

Few constituencies are more marginalized than former prisoners.  Our willingness to dehumanize former prisoners ignores the simple fact that the only difference between “them” and “us” is that they got caught while we got jobs, and get to keep them.

Stories of redemption are easy to find, though countless others we don’t hear about break the other way.  It’s time we treated ex-offenders individually and on their own merits so that redemption can become the rule, and not the exception.

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

I Heart Kozinski

I Heart Kozinski

Justice Alex Kozinski

By Wendy Musell

It’s not every day that I profess my adoration for a public official so, well, publically. Especially not for a sitting Ninth Circuit Court of Appeals Judge who is often called conservative.

But I heart Kozinski.

It’s not because of his reportedly big personality, his colorful turn of a phrase, or his willingness to take on controversial topics. I must confess; I often disagree with his politics and his findings.

It’s that he gets it.

At least he gets it when it comes to the critical importance of vigorous discovery in civil cases to plaintiffs . . . now that he’s involved in a consumer class action suit against Nissan Motors.

What made this otherwise conservative judge see the light? It turns out that Judge Kozinski is unhappy with his attorney’s failure to delve into Nissan’s alleged illegal behavior before entering in what Judge Kozinski suggests is a “sweetheart” settlement deal in Klee, et al. v. Nissan North America, Inc., a class action on behalf of Nissan Leaf car owners for warranty and alleged battery defects. He was so enraged with his attorney’s failure to delve into the knowledge of Nissan regarding these alleged defects before selling the vehicles to consumers that he filed a pleading asking the Judge to deny court approval to the proposed settlement. In his thirty page opposition, he (and his wife) passionately made the case that “extensive” and “vigorous” discovery is needed to demonstrate liability of corporate defendants.

After deriding his high-powered attorneys for failing to obtain evidence that would be necessary to prove liability at trial (learn what is the asbestos attorney strategy), such as internal memos, emails, incident reports and prior complaints, Judge Kozinski wrote: “it’s the job of the lawyers suing to find out everything the company knows and hopes to conceal.”

Judge Kozinski took the words right out of my mouth.

His observation pinpoints the controversy over changes to federal rules now being proposed that would limit discovery in all civil cases, including those involving consumer, employment and civil rights claims, filed in federal courtroom across the country. The proposed changes to the federal rules that govern discovery would cut the number of depositions allowed by half (from 10 to 5) and limit them to six hours each. Documents requests are slashed imposing a limit of only to 25 requests; interrogatory requests from 25 to a paltry 15 and admissions having new numeric restrictions of only 25.

The proposed changes, recently submitted by the Judicial Conference of the United States to Congress are now open for public comment. Public hearings, which have already begun, are being held in Phoenix, Arizona on January 9, 2014 and Dallas, Texas

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on February 7, 2014. Public comments received from civil rights, consumer rights, and environmental champions argue that the rules will effectively do away with the discovery needed to enforce laws for the protection of all citizens.

On the other side, comments received from representatives of big corporate interests complain that the cost of discovery is too high, requiring a “trim” of discovery for all cases in federal court.

If these proposed changes to the federal rules of civil procedure take effect, Americans who bring consumer, employment or civil rights claims against large corporate entities will feel Judge Kozinski’s pain. An employee who was wrongfully fired for, say whistleblowing, won’t get to find out very much and certainly not what the company hopes to conceal. Instead, it is far more likely that companies who are intent on doing bad things and firing employees who bring unlawful practices to light will play possum until the meager discovery afforded under the proposed changes are all used up in a game of “gotcha.”

Judge Kozinski’s experience as a class member in a consumer rights case has led him to provide a vivid example of how paramount discovery is to prosecuting cases that that are brought under federal laws enacted to protect the public from false claims or faulty products. Judge Kozinski’s experience demonstrates how important this yawn-inducing technical “fix” to the discovery rules is to the general public. People and their elected representatives should be paying attention too.

[To learn more about how the proposed changes to the Federal Rules of Civil Procedure would harm civil right cases, read Wendy Musell’s earlier blog post, Gaming the system: If you can’t beat em, change the rules.]


Wendy Musell

About Wendy Musell

Wendy Musell is a partner at the civil rights law firm Stewart & Musell, LLP, a bi-coastal law firm located in San Francisco, California, and Freehold, New Jersey. Since 1999, Ms. Musell has specialized in employment discrimination and disability cases, including individual and class action cases in both state and federal court. Ms. Musell has received multiple awards for her representation of clients who are HIV positive. Cases that Stewart & Musell, LLP has prosecuted on behalf of employees has been featured widely in the news and in print media, including ABC, NBC, CBS, Fox Network and the Wall Street Journal.

Heralding USERRA — the unknown law that protects jobs at home while military members serve

Heralding USERRA -- the unknown law that protects jobs at home while military members serve

military-man-station-6081107By Sarah Schlehr

I am proud to say that my younger brother is a Veteran of the Marine Reserves.  He served two tours of active duty—both in Iraq.  Being a Marine is part of his identity and something he will wear as a badge of honor through his life.

My brother signed up for the Marine Reserves shortly after 9/11.  While I personally did not support our invasion of Iraq, I always supported our troops and personally witnessed the commitment and passion of my then 19 year old brother in wanting to protect our country’s freedoms.

At the time of his first call to duty, my brother was just 22.  He worked a full-time job at a grocery store in the Midwest.  Although I make my living representing employees in legal disputes with employers, his was my first experience with the ways employers, whether knowingly or through ignorance, violate the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Though his job paid just over the minimum wage, my brother was on management track and entitled to health benefits.  That is, he was until he notified his employer that he had been called to active duty for service in Iraq.

Shortly before my brother left for Iraq, his manager called him into his office and had him sign a paper stating that he was being reduced to part-time hours, but that he would be eligible to return to full-time status if and when he returned.  Unhappy with this demand, but also preoccupied with his impending departure to active military service and unfamiliar with his rights under USERRA, my brother signed the paper and left.

After sharing his frustration with others more knowledgeable about the law, he went back to the store, and asked to see the paper that he had signed.  He then tore it in half.  His stunned manager asked him if he was walking out of the job.  My brother responded “No, I’ll be back in about a year,” and left for Iraq.

It is shameful that so many military service members are uninformed about their rights under USERRA, the federal law designed to protect their civilian jobs, and to ensure their re-employment after deployment.  Ignorance of the law appears to be rampant. And despite efforts by both the Department of Labor and the Department of Defense to educate employers on their obligations under USERRA, complaints by service members are on the rise.

USERRA requires employers to provide service members time off to serve in the military and to restore them to their jobs promptly when they return from duty.   Importantly, it also requires the employer to continue medical coverage for service members and their dependents through any employer-based health plan for up to 24 months and prohibits discrimination and retaliation against service members.  In my brother’s case, the employer’s attempt to move him to a part-time position could have impacted his entitlement to coverage during his tour of duty.

It is impossible to determine the actual number of USERRA violations because there is no central collection point for reporting claims. And some service members, like my brother, may never formally complain.  However, we do know that complaints filed with the Employer Support of the Guard and Reserve (ESGR), an agency within the Department of Defense, and through the Veterans in Employment and Training Service (VETS), an office within the Department of Labor rose between 2010 and 2011, the most recent years for which numbers are currently available.

The Defense Department’s ESGR attempts to informally resolve service members’ complaints through the use of volunteer ombudsman.  During FY 2011, the most recent year for which numbers are available, the ESGR mediated 2,884 USERRA cases.  Over 1500 of them involved problems with job reinstatement and reemployment. Although instructive, these numbers don’t tell the whole story since there is no requirement that employees complain to the ESGR nor are they required to participate in mediation.  At the same time, the Department of Labor VETS program reviewed 1,548 new unique USERRA complaint cases, up 8% from the previous year.

These numbers do not tell the whole story.   Many service members are unaware of their rights under USERRA.  Even those who know about USERRA may be reluctant to pursue legal recourse.  Those who do pursue their rights may utilize legal avenues outside of the ESGR and VETS.

Fortunately, my brother came home from Iraq safely and was able to return to his job.  When he returned, he went back to the same store and manager and experienced no serious repercussions or retaliation.  He still isn’t sure if his former employer was intentionally violating the law or just ignorant of its protections.

But not everyone is so lucky.  Much more needs to be done to educate both employers and service members of their employment rights, to track violations, to punish violators, and to provide redress.  Surely, that’s the least we can do to repay the sacrifices made by  the men and women protecting our country.

Sarah Schlehr

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

Wedding bells ring at West Point

Wedding bells ring at West Point

Library of Congress, Prints & Photographs Division, HABS, Reproduction number HABS NY-5708-20-2By Elizabeth Kristen

Now that “Don’t Ask Don’t Tell” and the “Defense of Marriage Act” are history, wedding bells are ringing at West Point for same-sex couples. A little over a week ago, Daniel Lennox and Larry Choate III, both West Point graduates, exchanged their vows in the historic West Point Cadet Chapel, following in the footsteps of lesbian couples who married at West Point late last year.

In 2011, the military issued a memo allowing military Chaplains to perform same-sex weddings on and off base.  In August of this year, the military began trying to make it easier for service members to take time off to marry their same-sex partners.  Defense Secretary Chuck Hagel said the goal of the policy was to “help level the playing field” for same-sex couples. Under the new policy, service members in the continental United States who are stationed more than 100 miles from a place that allows same-sex marriages could take up to seven days off to travel to a place to marry.  Service members overseas can take up to 20 days off for the same reason.  Most important to the new “level playing field,” the newlywed spouse of the service member then becomes eligible for a host of important benefits such as health care, tuition assistance and joint assignments.

Some of the service branches have issued guidelines to make it easier for service members to take advantage of this policy.  The Marines led the way and, more recently, the Air Force has issued directives allowing service members to take time away from work to travel to same-sex marriage states to wed.

The work of equality is not done.  Some service members still report difficulty accessing the leaveTransgender men and women still must hide their true identities or face discharge.  Members of the LGBT community still face discrimination and harassment.  But there is also little doubt now that real change is underway, and allowing service members to marry their same-sex partners is an important step towards the freedom and equality those who serve in our military risk their lives to protect.


Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

Something to celebrate this Veterans Day

Something to celebrate this Veterans Day


By Elizabeth Kristen

With the largest population of veterans of any state in the country, California has an extra reason to celebrate this Veteran’s Day.  Just last month, Governor Brown signed a new law that will prohibit employment discrimination and harassment in California based on military and veteran status.

Effective on the first day of 2014, AB 556, sponsored by Assemblymember Salas of Bakersfield, amends the California Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating on the basis of military or veteran status or the perception of such status.

Lawmakers were motivated to change the law by the unacceptably high unemployment rates of California veterans.  The Iraq and Afghanistan Veterans of America (IAVA) conducted a survey of their members and found that 24% of them were unemployed.   The Los Angeles Times reported that half of IAVA’s members believed that employers were not open to hiring veterans.

According to the U.S. Department of Labor’s September 2013 unemployment numbers, veterans who have served in the armed forces since September 11, 2001, have an unemployment rate of 10.1%, compared to a civilian unemployment rate of 6.8%.  Broken down by gender, the unemployment rates show that women veterans have a higher unemployment rate (11.6%) than male veterans (9.7%).  Female veterans also have a higher unemployment rate than female non-veterans (6.5%).

While a number of federal and state laws do specifically address veterans’ employment issues and leaves of absence (see upcoming Blog post on leaves for veterans and military families), having specific state-law employment discrimination and harassment protections for veterans can help in a number of ways.  First, the new law will raise awareness of the serious employment problems facing veterans as employers revisit their employment policies, procedures, postings, and training regarding discrimination and harassment.  Second, veterans who experience employment discrimination or harassment will have access to the Department of Fair Employment and Housing, the State agency charged with investigating their claims and filing court cases to enforce the law.  Third, adding additional protections to FEHA means that California employment lawyers will become more familiar with representing and advocating on behalf of veterans.

The new law provides protections to any member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.  The bill still permits employers to consider veteran status for purposes of veteran preferences in hiring, a practice encouraged by the Veterans Administration.

As we salute our veterans for their service, let’s also celebrate the great strides the Golden State is making towards full integration of our veterans as they return to our communities.


Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

“Donning and doffing”: The Supreme Court will decide an issue of great importance to employees required to wear gorilla suits to work (and to other employees with workplace uniform requirements as well)


By Curt Surls

You recently graduated from a private, liberal arts college in a leafy Midwestern town with a B.A. in Medieval Albanian Poetry.  Nevertheless, you found a job straight out of college.  The good news is that your new job pays a living hourly wage, and you are represented by a strong union.  The bad news is that you have to wear a gorilla suit to work.  Further, the collective bargaining agreement between your union and your employer denies you compensation for the time spent changing into and out of your gorilla suit.  Are you out of luck?

Maybe not.  The US Supreme Court is hearing arguments this week in a “donning” and “doffing” case.  “Donning” and “doffing” are archaic verbs used only by labor lawyers and minor Dickens characters.  In legal parlance, you do not “take off” your gorilla suit after work; you “doff” your gorilla suit.

Ideally, you shouldn’t have to do any doffing on your own time.  Under state and federal law, if you are required to change into a uniform or protective gear at the workplace, you are generally entitled to be compensated for that time.  Your gorilla-suit-donning time should be compensable.

But there’s a wrinkle to this rule in the context of a unionized workplace.  Section 203(o) of the Fair Labor Standards Act (“FLSA”) permits a union to bargain away an employee’s right to compensation for time spent “changing clothes” at the beginning or end of the workday.

Since the late 1940’s, the United Steelworkers union has traded its members’ right to be compensated for “donning and doffing” for other benefits.  And that agreement is at issue before the U.S. Supreme Court now in Sandifer v. United States Steel Corporation.

The steelworker plaintiffs in Sandifer have to outfit themselves in a variety of flame-retardant safety-gear before commencing their shifts.  They argue that the union has no right to bargain away their right to compensation for time spent “donning and doffing” the protective gear because they are not “changing clothes” within the meaning of the FLSA.  The term “changing clothes,” they assert, refers to “substituting certain clothes for others, not merely putting on something else” over them.  The union, therefore, cannot bargain away their right to be compensated for time spent wrestling with the Kevlar.  They want to be paid for this time.

The company, with support from the Obama Administration, is arguing for an expansive definition of “clothes,” that would include protective gear, and other accoutrements such as safety goggles and ear plugs.  In other words, US Steel and the government want union and management to have the ability to bargain away the employees’ right to be compensated for the time they spend “donning” their protective gear.

Nonsense, claim the steelworkers, who argue that an expansive definition of “clothes” and “changing clothes” could lead to absurd results.  In an analogy that makes my gorilla suit example seem temperate, the steelworkers question whether an overly-broad definition of “clothes” would include make-up for a KISS cover band or Captain Kangaroos’ wig (that was a wig?!).

In the end, most observers think the US Supreme Court will duck the issue of gorilla suits, KISS make-up and children’s show host hairpieces and adopt the definition of “clothes” proffered by the Department of Labor:  Items like hoods, jackets, gloves, pants, leggings, helmets and boots will be considered “clothes” whether or not they are protective in nature.  Therefore, a union can bargain away the right to compensation for “donning and doffing” those items.

And gorilla suits?  If you’re in a union, and you’re required to wear a gorilla suit to work (admittedly, this may not be a substantial demographic), the Sandifer decision probably won’t affect you; “donning” a gorilla suit would still likely be considered “changing clothes.”  However, workers in dangerous jobs that require extensive safety gear will be watching this case with greater interest.

Curt Surls

About Curt Surls

Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation, a non-profit professional association honoring lawyers whose careers have demonstrated dedication to the welfare of the community and the traditions of the profession. Prior to opening the Law Office of Curt Surls in July 2012, he was a partner with Bornn & Surls for over 15 years. Mr. Surls was also an attorney with the Oakland civil rights firm then known as Saperstein, Seligman & Mayeda, specializing in employment and civil rights class actions. Mr. Surls also worked for the Department of Industrial Relations and the Legal Aid Foundation of Los Angeles.

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